Analysis: International law has nothing to do with an Israel-Turkey deal

By Yonah Jeremy Bob02/05/2014

To say that Israel is bowing to Turkish claims of precedence would be to ignore the virtually unbounded world of ex gratia payments.

A Turkish official has reportedly repeated a similar statement by his government that the millions of dollars in compensation that Israel may pay Turkey to end the dispute over the May 2010 Mavi Marmara incident are based on international law and precedent.

The official appears to be ignoring most of the legal opinion on the incident and clearly has not studied the history of ex gratia payments. These are payments which countries sometimes make to smooth over an incident without taking formal responsibility, when innocents are killed by an alleged mistake.

The UN Palmer Report, while saying that Israel used some amount of excessive force, overall cleared Israel in the incident, declaring that the Gaza blockade that the Mavi Marmara attempted breach was legal and confirming that the IDF commandos on the Marmara had been attacked and had a right to self-defense.

The quasi-government Turkel Commission Report on the incident found that the blockade and the IDF’s operations were both valid under international law, also noting that the IDF commandos were attacked.

A separate report by the UN Human Rights Council and by a Turkish commission slammed Israel for various violations of international law, but the Palmer and Turkel reports have carried the most weight internationally.

So, if not international law, then maybe it is a precedent? A Haaretz report on the issue says that the current Turkish offer of a deal is for Israel to pay $30 million, whereas Israel is offering $20 million.

If true, Israel has come a long way toward Turkey from its original position of $100,000 per person to more than $2 million per person for the nine Turkish persons killed in the incident.

However, to say that Israel is bowing to Turkish claims of precedence would be to ignore the wild and virtually unbounded world of ex gratia payments.

Sometimes ex gratia payments show compassion, short of admitting fault.

Many times ex gratia payments are paid to promote national interests, like preserving future international travelers’ safety, maintaining relations, or mitigating the damage to relations with an important foreign nation.

In other cases, nations made ex gratia payments to retrieve hostages, end diplomatic isolation, and to rejoin the international community.

In 1968, Israel paid $3,323,500 to the families of the 34 dead crewman of the USS Liberty ship, following an incident during the 1967 Six Day War when Israeli aircraft and motor torpedo boats attacked the ship in error. The breakdown came to $97,750 per person.

In 1988, the US paid Iran $61.8 million to the families of 290 dead passengers on Iran Air Flight 365, a civilian airliner, that it shot down in error. The breakdown that time came to around $213,000 per person.

Starting in 2002, Libya paid at least $2.16 billion to the families of 270 dead passengers on Pan Am flight 103, known as the bombing, after the airplane was blown up in midair over Lockerbie, Scotland, by Libyan agents in 1988.

Here, the breakdown gets tricky, because much of the compensation went to high-powered professionals for 15 years of work on the case for the families and because Libya had so much to gain from breaking free of sanctions.

In both the Lockerbie case and in a separate case in which Iraq was supposed to pay $27 million to the US over a 1987 incident, intervening new incidents ended up causing a halt to the payments, which could not be legally enforced.

If the latest reported numbers are accurate and there is a deal, it is likely because Israel wanted more – possibly to regain Turkish cooperation on a number of fronts and to get the Turkish case against its top military commanders during the Marmara incident to disappear.

Also, Turkey may want more money, since it has gotten nowhere in convincing Israel to roll back the Gaza blockade.

Although some observers say that Turkey may be warming to a deal now to get a “victory” which will be popular at home and make the international community happy, in terms of removing a point of instability, it is possible that neither of these interests is as black and white as Israel’s interest in putting this issue behind it.

If anything, when politicians in such negotiations start polemicizing about international law, precedent, and justice, it is often a sign that they feel they have held out long enough and are ready to take the plunge in compromising their purist principles.